Director of Public Prosecutions v McCloskey
[2018] VCC 344
•22 March 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-00699
Indictment No F13854761
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KHODIE McCLOSKEY |
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JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 January 2018, 8 March 2018 | |
DATE OF SENTENCE: | 22 March 2018 | |
CASE MAY BE CITED AS: | DPP v McCloskey | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 344 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms R Furletti | Mr J Cain, Solicitor for Public Prosecutions |
| For the Accused | Ms S J Poulter (24 January 2018 and 8 March 2018) Mr G Thomas (22 March 2018) | Greg Thomas, Solicitor |
HIS HONOUR:
1 Khodie McCloskey, you were charged on indictment with having robbed Billy Anagnostopoulos of certain property, namely money, an Apple iPhone, and a Myki card, and at the time you knew that your co‑offender David Michael Eales (“Eales”) had with him an offensive weapon, namely a knife.
2 The maximum penalty for armed robbery is 25 years’ imprisonment.
3 You initially came before his Honour Judge Parsons, as he then was, for sentence in Geelong on 19 May 2016. You were sentenced by his Honour to 79 days’ imprisonment, which was time served at that time, and a community correction order with conviction for 18 months. You were ordered to serve a period of community service of 150 hours. In addition to the community work, his Honour ordered various program conditions. His Honour declared under s6AAA of the Sentencing Act 1991 (“the Act”) that but for your plea of guilty he would have ordered a total effective sentence of 2 years and 3 months’ imprisonment with a non-parole period of 18 months’ imprisonment.
4 On 21 December 2016, his Honour Judge Parsons, as he then was, heard an application to vary the community correction order that he had ordered on 19 May 2016. His Honour granted the application, cancelled the original order, and made a new order by which you were convicted and ordered to serve a community correction order for a period of 12 months to commence on 18 January 2017 and end on 17 January 2018. In addition to the mandatory terms required under the Act, this order provided that you be supervised for a period of 12 months and:
(i) that you undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the regional manager;
(ii) that you undergo assessment and treatment (including testing) for alcohol abuse or dependency as directed by the regional manager;
(iii) that you undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility as directed by the regional manager; and
(iv) that you must participate in programs and/or courses that address factors relating to your offending behaviour as directed by the regional manager.
5 His Honour declared that pre-sentence detention was 79 days.
6 His Honour made the following findings in your favour:
(i) You entered an early plea of guilty for which he gave you the utilitarian benefit as well as some subjective elements.
(ii) You made admissions to police.
(iii) You were remorseful.
(iv) You have had a deprived childhood.
(v) You are a youthful offender, being aged nineteen at the time of the offence. I note you are now aged twenty-two years.
(vi) Delay.
(vii) The limited role you played in the offending conduct, not being the person armed with the knife or the principal assailant. However, you also have significant prior convictions for offences involving dishonesty, some violent offences, and some drug offences.
7 His Honour took into account parity with your co‑offender, Eales, whom his Honour sentenced on 1 June 2015 to 130 days’ imprisonment and an 18‑month community correction order with conviction with 125 hours’ community work and a number of other conditions. In Eales’ case, his Honour’s 6AAA declaration was 2½ years imprisonment with a non-parole period of 18 months. Eales also faced two relatively minor summary charges. Eales was slightly younger than you, and had a less serious prior criminal history; however, as I previously noted, he played a much more significant role in the offending conduct.
8 Eales contravened the CCO by failing to comply with its conditions and by further offending. On 11 December 2017, he was brought back before his Honour Judge Parsons on a contravention hearing. The original CCO was cancelled and he was resentenced to 262 days’ imprisonment (equivalent to 8.7 months), which was time served.
9 The present matter comes before me by way of a charge and summons issued in the Moorabbin Magistrates’ Court on 13 September 2017, whereby it is alleged that you, without reasonable excuse, failed to comply with the conditions of the community correction order in the manner specified in the attached schedule. This charge is brought under s83AD(1) of the Act. It was alleged in the accompanying schedule that you failed to undergo treatment and rehabilitation as required on seven specified dates, and that you failed to be supervised, monitored, and managed as directed on seventeen specified dates.
10 It was further alleged that you had been convicted of offences committed during the operational period of the order. On 19 April 2017 & 8 December 2017 at the Melbourne Magistrates’ Court you were found guilty of 5 offences against the person, 15 offences involving dishonesty, 1 damage property offence, 10 offences against the Bail Act 1977 and 1 charge of contravene a community corrections order — a total of 32 charges. Following you receiving an initial CCO on some of those charges you were breached and ultimately sentenced on the original offences and the breaching offences to a total effective sentence of 12 months’ imprisonment with a 5 month non-parole period. 80 days PSD was declared. You are presently serving this sentence. You became eligible for parole on 16 February 2018, but were unable to take advantage of that opportunity because you were remanded in custody in respect of the present charge.
11 The charge of contravening a CCO has been transferred from the Magistrates’ Court to this Court pursuant to s83AJ(1) of the Act.
12 His Honour Judge Parsons has since retired from this Court, and this matter comes before me to be dealt with pursuant to s15 of the County Court Act1958. Accordingly, you now fall to be sentenced under s83AD of the Sentencing Act1991 for the offence of contravening a community correction order, which carries a maximum penalty of three months’ imprisonment.
13 You have admitted the alleged breaches of the CCO and consequently, since I find you guilty of the offence under s83AD of the Act, I must now deal with you for the offence of armed robbery, pursuant to s83AS(1)(c) of the Act.
14 You have indicated that you do not wish to have a further community correction order imposed, and accordingly, I cancel the order imposed by his Honour Judge Parsons on 21 December 2016 and I must now resentence you for the offence of armed robbery in any manner in which the court could have dealt with you if I had just found you guilty of that offence.
15 I will now summarise the facts giving rise to the armed robbery offence for which you now fall to be resentenced. These are drawn from the Summary of Prosecution Opening dated 10 May 2016 (Exhibit “P1”). The victim, Billy Anagnostopoulos, was eighteen years old at the time of the offending. He was a high school student who had been diagnosed with an intellectual disability. It is not alleged that you were aware of his intellectual disability until sometime after the circumstances giving rise to this offence.
16 The incident occurred on 1 January 2015 at approximately 5.30pm at the Argyle Reserve in Hughesdale. The victim arrived at the reserve to meet two female friends. When he arrived, these two female friends were accompanied by you, David Eales, and another person called “James”. The victim spoke with his friends. You and Eales were sitting in an area of bushes approximately 50 metres away. The victim and his two friends walked over towards the bushes to talk to James. You, Eales and James all left the bushes. The victim offered you cigarettes.
17 You surrounded the victim, with Eales facing him directly, and then Eales made a demand of the victim for his clothing, including his jumper and shoes, saying “Give us your stuff.” The victim described Eales as being “right up in his face”. Eales then produced a four-blade green-handled knife from his rear pocket, held it to the victim’s neck, and said “Do you want to get chopped?”
18 The victim, who was holding his mobile phone, was trying to call his mother, as he was very scared. Eales took the victim’s mobile phone and threw it to you. You appeared to be filming the incident on another mobile phone. The victim’s phone contained his yearly Myki card and $50 in cash in the inside cover. The victim asked you for his phone to be returned, at which point Eales said he did not have the phone, and pushed the victim backwards to the ground. You and James were watching as this occurred, and were laughing.
19 Eales then lifted the victim towards him by his shirt. He still held the knife up, and the knife touched the left side of the victim’s throat. Eales repeated, “Do you want to get chopped?” As the victim tried to get up from the ground, Eales struck him to the head and the jaw area with his knee. The incident lasted a few minutes, and the group of you ran away towards the bus stop. As you ran away, one of the victim’s friends heard him screaming out her name, but she did not want to get involved.
20 The victim then walked to a McDonald’s restaurant, where police were called. He felt dizzy, and had a pain in his head. Police attended at 5.45pm and observed the victim to be in a distressed state. He was examined by an ambulance officer and found to have no visible injuries.
21 You were arrested on 10 January 2015 and conveyed to the Oakleigh Police Station, where a record of interview was conducted. You admitted to drinking two cans of Woodstock prior to committing the offence. You made admissions to your involvement in the armed robbery, although it is fair to say that you somewhat minimised your role. You did not admit actually filming the incident, alleging that you were pretending to film it. You agreed that you were “a bit harsh and laughing in the background”. You said that the victim got kneed twice and hit once. You said you did not know he had a disability, and only found out about that after the incident, which I accept.
22 Following interview you were released pending summons. You were charged on 1 March 2016 and remanded in custody. You pleaded guilty to the present charges at a committal case conference held on 26 April 2016.
23 On resentencing you for a contravention of a community correction order, I am required to take into account the extent of compliance with the original CCO (See s83AS(2) of the Act). The details of your compliance, or rather lack of it, are set out in a report from Ms Isobel Sanderson of the Moorabbin Justice Centre dated 10 October 2017 (Exhibit P10), which states as follows:
a.Mr McCloskey initially attended supervision and engaged positively but attendance declined as time passed. When Mr McCloskey did attend supervision, he was avoidant of discussions surrounding offending behaviour and risk factors and did “not appear to be genuinely motivated to action any strategies or goals discussed”.
b.After being arrested on further offending and released on bail with a condition to report to CCS, Mr McCloskey did not make any further contact with CCS.
c.Mr McCloskey attended six sessions with an AOD Youth Outreach Clinician but his overall engagement was poor, and the condition was unfulfilled.
d.Mr McCloskey did not engage with any mental health treatment with his referred psychologist.
e.Mr McCloskey was exited from the YMCA Bridge Program due to non-attendance.
f.Of particular concern, you have been charged with five sets of new offences since the imposition of the CCO.
24 It is clear that as a result of your failure to take advantage of the very lenient disposition extended to you by Judge Parsons, and your committing a significant number of relevant subsequent offences, I can only take a view of your prospects of rehabilitation as being very poor. Moreover, the principles of specific deterrence and protection of the community must be given greater weight than might have been the case when you originally fell to be sentenced before Judge Parsons.
25 It is clear that the extension of leniency towards you does not have the desired effect of promoting your prospects of rehabilitation and reducing the risk of your reoffending.
Victim impact
26 I received a victim impact statement from Billy Anagnostopoulos declared 21 May 2015 (Exhibit P2). The victim states that the armed robbery has left him feeling sad, scared, and with “no confidence”. It has affected his wellbeing and usual routine. He now does not feel safe on his own, and sleeps with a baseball bat next to him. He has been attending a number of therapists, including a psychiatrist. His sleep patterns had been extremely badly affected for the last few months before he declared the statement, and he had been prescribed sleeping tablets. He has been feeling anxious and has been advised to go on anti-depressant medication. Clearly this offence has had a significant adverse impact on the victim, who already has difficulties coping by reason of his intellectual disability.
27 At the initial hearing of this contravention, on 24 January 2018, I had before me a report from Ms Gina Cidoni, undated (Exhibit A3). Owing to Ms Cidoni’s opinion that you have an intellectual function which was borderline, with a full-scale IQ of 73, I sought an assessment from the Secretary of the Department of Health and Human Services regarding whether you were eligible for support from Disability Services. Ms Cidoni also raised the possibility of you suffering from an acquired brain injury as a result of “chroming” at the age of sixteen and a possible head injury at the age of eighteen. Moreover, in her report Ms Cidoni noted that:
His symptoms include difficulty discerning between what is real and what isn’t. There are hallucinations and delusions and difficulty organising thoughts, with making decisions and sustaining attention and concentration.
28 Ms Cidoni did not make any diagnosis in relation to any mental illness. However, I felt I would be assisted by further psychological and neuropsychological testing in order to establish whether there was any underlying acquired brain injury or other disorder which required my attention. Accordingly I sought, from the Secretary of the Department of Justice, pre-sentence reports in relation to psychological and neuropsychological matters. Ultimately, a neuropsychological report was provided to the Court by your solicitors.
29 Since the initial hearing in this matter I have been provided with a court-ordered report from Mr Chris Drake, clinical psychologist with Forensicare, dated 6 March 2018 (Exhibit P4). Mr Drake found no evidence of previously reported post-traumatic stress disorder or psychosis. He also noted that:
Based on Ms Cidoni’s report and his presentation in interview I would be surprised if he fell within the intellectually disabled range of cognitive function.
30 Mr Drake also opined:
As his depression continues to remain in abeyance while receiving treatment in prison I do not believe that depression or limited intellectual function will adversely affect his ability to cope with imprisonment or that these conditions will deteriorate as a result of imprisonment. Nevertheless, Mr McCloskey may be vulnerable to impulsive suicidal ideation which could be explored regularly by his treating clinician.
31 Mr Drake also noted that:
Using the Level of Service Risk Needs Responsivity tool, all indications are that he presents with a high or very high risk of general criminality.
32 Like Ms Cidoni, Mr Drake did not diagnose any mental illness, and accordingly it would appear that, so far as he is concerned, there are no Verdins principles engaged in this case.
33 I also received a neuropsychological report from Ms Laura Scott, clinical neuropsychologist, dated 2 March 2018 (Exhibit A4), which was provided to the Court by your legal representatives. The purpose of Ms Scott’s examination of you was as a result of a previous assessment by Ms Cidoni which identified risk factors for brain injury, including drug use and concussion, and initial testing which indicated that you may have an intellectual disability.
34 Following a neuropsychological assessment conducted at the Melbourne Remand Centre over approximately 3.5 hours on 16 February 2018, Ms Scott conducted a large number of neuropsychological and psychological tests.
35 Your premorbid intelligence was estimated to be in the average range. On the WAIS-IV you obtained a full-scale IQ score of 89, which falls within the average to low average range, and is consistent with premorbid estimates. Ms Scott noted in her summary and assessment at [9]:
Responses on a formal questionnaire of psychological distress indicated severe depressive symptomatology and moderate levels of anxiety and stress.
36 Ms Scott reported that you have mild to moderate impairments in a number of areas, whilst a number of other areas presented with intact function. She concluded that this combination of factors supports a diagnosis of attention deficit hyperactivity disorder. She noted that:
His low mood, anxiety and stress are likely to be adding a further burden on top of ADHD-related impairments.
37 Ms Scott opined that the results of her assessment were not consistent with intellectual disability, and there was no evidence of you suffering any acquired brain injury.
38 I am prepared to accept that the constellation of mental features identified by Ms Scott does engage Verdins principle 5, in that the burden of imprisonment would be greater on you than a prisoner of “normal” mental functioning. I will take this into account in your favour.
39 I received a brief report from Ms Tammy Brimmell, psychologist with Disability Client Services in the Department of Health and Human Services (Exhibit P5). She concluded:
Based on the results of a psychological assessment report, it has been determined that Khodie McCloskey does not have an intellectual disability.
…
Mr McCloskey does not meet the criterion related to intellectual functioning and, in turn, does not have an intellectual disability as defined by the Disability Act 2006.
40 Consequently, the Department was unable to provide a Statement of Intellectual Disability and a Justice Plan.
41 Finally, I received an “Addendum Court Report” dated 19 March 2018 from Mr Chris Drake (Exhibit P6). This was provided as a consequence of his being provided with Ms Scott’s and Ms Brimmell’s reports and his having spoken to your grandmother.
42 Mr Drake opined that Ms Scott’s findings of “cognitive deficits consistent with ADHD supports or exacerbates predictions of Mr McCloskey’s high risk of general recidivism and treatment needs. Unfortunately, identified deficits will render intervention somewhat more difficult.” He concluded there was a need to address your ADHD symptoms in order to improve your capacity to comply with the conditions of correctional orders and live more adaptively in the community. He made recommendations as to possible future treatment paths involving social and psychological and, possibly, psychopharmacological interventions.
43 However, Mr Drake was “not convinced that the disorder [ADHD] played a substantial role in [your] offence as alcohol and antisocial attitude appear to have played a more direct role.” He also expressed the view that his “observations and interpretations of the most recent neuropsychological test findings are suggestive of mild rather than moderate to severe deficits.”
44 Since the hearing before me on 24 January 2018, and the further plea on 8 March 2018, I have received written submissions from your counsel dated 13 March 2018, together with attached certificates (Exhibit A5). I have had regard to those submissions and certificates and taken them into account in fixing the sentences in relation to this contravention proceeding. I have also received, since those hearings, prosecution submissions in relation to contravention proceedings dated 16 March 2018 (Exhibit P7), and I have had regard to the submissions made in that document.
45 I have found this to be a difficult sentencing exercise. Nonetheless, the most significant sentencing considerations in this case appear to me to be as follows.
(1) The need to impose a sentence which gives appropriate weight to the principles of general deterrence and denunciation arising from the commission of a serious and prevalent offence carrying a maximum penalty of 25 years’ imprisonment; albeit, I accept that this offending falls within the lower range of offence seriousness for offences of this type.
(2) There is also a need to give some weight to specific deterrence and protection of the community, given your prior and subsequent offending and your demonstrable inability to engage with rehabilitative dispositions in the past.
(3) So far as your prospects of rehabilitation are concerned, I cannot rate them any higher than extremely problematic.
(4) Just punishment must always be the ultimate aim of any sentencing process.
(5) Significant mitigating factors include your early plea of guilty and significant delay. You are a youthful offender. You come from a socially and economically disadvantaged background and upbringing and I am prepared to allow some weight to be given to Verdins principle 5 for the reasons given by Ms Poulter in her further submissions filed after the plea hearing.
46 Very important and quite difficult principles apply when considering the questions of totality and parity that arise in sentencing you. I will tailor my sentence as best I can to give effect to both of those principles.
47 Stand up, Mr McCloskey.
48 Doing the best I can, you, having been brought back this day for contravention of a community correction order, I make the following orders:
(i) I find the contravention proven.
(ii) The original order is cancelled.
(iii) You are resentenced on the original charge of armed robbery to six months’ imprisonment.
(iv) I order that all but 35 days of that sentence be served cumulatively on the sentence you are presently undergoing. I make that order to ameliorate the effect of the time you have spent in custody since becoming eligible for parole on the sentence imposed in the Magistrates’ Court on 16 February 2018.
(v) On the charge of contravene community correction order, you will be convicted and discharged under s 7(1)(h) of the Act.
(vi) I take the view that the sentence I have just imposed is a resentencing on the original offence of armed robbery and that the original sentence of 79 days’ imprisonment imposed by his Honour Judge Parsons, as he then was, on 19 May 2016 has become subsumed or incorporated in this sentence. It is not legally permissible for there to be two sentences of imprisonment imposed for the one offence; unlike in the case of imprisonment and a CCO or imprisonment and a fine, where there is statutory provision to the contrary.
(vii) Accordingly, it is appropriate for me to order as pre-sentence detention the 79 days’ imprisonment served under his Honour Judge Parson’s sentence, which is to be administratively deducted from the sentence I have just imposed on you.
(viii) It is my intention in sentencing you that the effect of my sentence is for you to serve an additional 66 days, or approximately two months, in prison cumulative on sentence you are currently undergoing. At the end of that period you will recommence to serve the sentence you are presently undergoing from the Magistrates’ Court, which will have been suspended whilst you are serving my sentence. You will then be eligible for parole at that time.
(ix) I direct that if the intention of my orders is unable to be carried into effect by the sentence management authorities for any reason, I reserve liberty to apply to both parties to mention the matter before me so that any further orders can be made so as to give effect to the intention with which I have imposed this sentence.
(x) I further direct that the psychological, neuropsychological and other like reports referred to in these reasons for sentence be provided to the Office of Corrections for custody management purposes and to the Adult Parole Board.
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